If the government proposals were implemented in full, we believe they would bring a very slight, but mostly negligible, improvement to the openness of the family courts in England and Wales.
But why do we say this? Surely allowing the press in to family courts lays waste to claims that family courts deliver secret, unaccountable justice? Free press access must finally offer the nirvana we have been searching for?
Well unfortunately, we don’t believe it would.
Firstly, the DCA, in their consultation document, admit that other countries where similar measures have already been taken (namely British Columbia and New Zealand) report minimal court attendance by the press.
Indeed, why should they attend? Apart from the difficulty of selecting (from the large number of family cases in court) which case to attend, what value would the press get from observing a hearing without any prior knowledge of the case or the proceedings? How much would they be able to understand the proceedings without that?
It’s not as if the DCA proposals extend the right of the press to ask questions or seek information from the attendees, who would still be most likely committing a contempt of court if they spoke to the journalist outside the court.
The fact is, the greater part of a family law case does not take place behind the ‘closed doors’ of a family court room (where the press are proposed to be able to attend) but in the homes of the participants when they are interviewed by a CAFCASS officer. These court appointed officers usually speak to both participants and write a report which is then submitted to the court.
Most of the real decision making and consideration of any evidence is done by the CAFCASS officer and presented – along with recommendations – in their report. Very often, the court hearing itself is little more than a cursory judicial rubber-stamping of any recommendations in the report.
However, under the DCA proposals for openness, the CAFCASS report will still not be available to the press.
Consequently the most important part of the court decision making process will remain secret, unchallengeable and unaccountable.
So how could a journalist decide – by simply listening in court, and without seeing most of the evidence – whether what they are seeing is a fair hearing, or whether the best interests of the child are being properly promoted?
The truth is they would still have no way to judge, despite the DCA proposals.
So unfortunately, we believe the very thing that the government says it wishes to promote – openness and confidence in the family justice system – will still not be available, in any meaningful sense, even if their current proposals were implemented in full.
